Citation Nr: 21065810
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 20-29 002
DATE: October 27, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

On October 1, 2021, the Board of Veterans' Appeals (Board) was notified that the Veteran died in September 2021.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal regarding service connection for depression, service connection for insomnia, a higher disability rating for surgical scar residual to left groin hernia, and a TDIU, at this time. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The appeal arose from a February 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In that decision the RO denied service connection for depression and service connection for insomnia. The RO granted service connection for surgical scar residual to left groin hernia and assigned a disability rating of 0 percent. The RO denied a TDIU. The Veteran appealed that decision to the Board.

Unfortunately, the Veteran died during the pendency of the appeal. As a matter of law, appellants' claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). This appeal on the merits has become moot by virtue of the death of the Veteran and must be dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106.

The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion. Such request must be filed not later than one year after the date of the appellant's death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b). A person eligible for substitution includes "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...." 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a). An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the Veteran should file a request for substitution with the VA office from which the claim originated. 38 C.F.R. § 3.1010(b).

 

 

Rebecca N. Poulson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. J. Kunz, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.